Youtube users started reporting this week that Nintendo has started claiming revenue for advertisement on user-created Youtube videos which feature content from Nintendo games. Nintendo confirmed this news stating they became a Youtube partner in February of 2013 and registered their copyright content in the Youtube database. Unlike most infringement cases, Nintendo is not asking Youtube to take down potentially infringing videos. Instead Nintendo is issuing content ID match claims to place its own advertising before, within, or at the end of the videos.

Nintendo is targeted videos featuring Nintendo-owned images or audio of a certain length. The most common videos affected are “Let’s Play” videos. These videos are show gamers playing through video games and can vary from a few seconds of gameplay to entire playthroughs of a game. People upload these videos for humor, to demonstrate how to clear a certain part of the game, or just to show off how good they are. “Let’s Play” channels can boast over 100,000 subscribers and individual videos can reach over 1,000,000 views.

As a copyright owner Nintendo has the exclusive right to reproduce their works and to create derivative works under Section 106 of the Copyright Code. Even though Youtube videos are not copies of the software code of video games a video showing gameplay is still a reproduction. Videos which reproduce clips of a game with commentary by a gamer would be considered a derivate work; even though the video may be original enough for its own copyright it is still based on Nintendo works.

Prominent “Let’s Play”ers have already expressed they believe they are protected by fair use. Fair use, defined in Section 107 of the Copyright Code protects reproductions for purposes such as criticism, comment, and more. Many people argue “Let’s Play” videos qualify for a fair use exception because they do often criticize games and have humorous commentary.

It is very likely at least one “Let’s Play”er will sue Youtube or Nintendo to reclaim future advertising revenues. To evaluate fair use courts will look at the purpose and character of the videos, the nature of the Nintendo games, the amount of the games used in the videos, and the effects “Let’s Play” videos will have on the potential market and value of Nintendo’s games. “Let’s Play” videos widely vary from channel to channel so while some videos could be held to be a fair use others may not.

If you host videos Nintendo claimed advertising revenue for you should seek advice from an attorney. Stone Law handles copyright matters ranging from litigation to registration. You can call our office at 732-444-6303 or leave us a message on our website.